Ross v. Ross: Celibacy pending adultery claim

On August 23, 2016, the New Hampshire Supreme Court issued an opinion in the . It is a fascinating case about adultery and new relationships during a divorce. The outcome is a cautionary tale for persons seeking fault grounds for divorce.  

The Facts

Husband and wife met in dental school and later married. Husband, who had his own endodontist practice, helped his wife open and build her orthodontist practice. Considerable money was put into the venture. The couple separated the day that husband discovered wife was having an affair with another dentist. Wife filed for divorce 5 days after the parties separated alleging both fault and irreconcilable differences as grounds. Husband cross-petitioned for divorce on fault-based grounds, due to the wife’s alleged adultery and irreconcilable differences. The parties had been married for 9 years at the time they filed for divorce.

Approximately 11 months after the divorce was file, husband began a sexual relationship with the ex-wife of the dentist wife was dating. Wife filed a motion to dismiss the adultery grounds pled against her. She argued the defense of recrimination, or in other words that the husband was no longer an “innocent spouse” because of his own adultery. The trial court agreed with wife and dismissed the husband’s fault grounds. The trial court issued a decree of divorce based on irreconcilable differences that divided the property with an intent to split it equally.

The Appeal

Husband appealed the dismissal of the fault-based ground in his cross-petition for divorce, arguing that his sexual relationship, which occurred eleven months after the parties’ separation, could not be used as a basis for the defense of recrimination. Husband asserted that such a holding would require parties to remain celibate during years of litigation in a contentious divorce. Wife argued the trial court did not err in granting the motion to dismiss because the respondent was not an “innocent party” within the meaning of the statute. RSA 458:7 (2004).

The Court examined RSA 458:7, which states that a divorce “shall be decreed in favor of the innocent party.” The statute requires that one be an “innocent party” at the time of the decree. The statute makes no exception for fault based grounds that arise prior to the final decree, regardless of whether they arise before or after the filing of the divorce petition. Therefore, the trial court correctly considered Husband’s post-petition conduct when deciding the motion to dismiss.
The Court further stated the fact that Husband’s adultery did not lead to the breakdown of the marriage does not bar recrimination as a defense, stating “Causation is not an element of the defense of recrimination.”

The Court affirmed the trial court’s decision to dismiss the fault grounds and grant a divorce on irreconcilable differences.

The Takeaway

The conclusion of husband’s brief argues: “It is not reasonable to suggest, in these times of protracted discovery and litigation, that a party to a divorce must remain celibate for the duration of the proceedings – here already longer than four years.” I happen to agree with him. Litigation can be a long and arduous process. While most divorces will settle within 6 months to 1 year, a small percentage can drag on. The longest divorce I have seen from start to finish has been 5 years. That is a long time to wait to date.

Why pursue the adultery grounds in the first place? It appears in this case that there was some significant bad blood between the parties. Husband had helped wife open her orthodontic practice and contributed financially and emotionally to that endeavor. In return, wife carried on an affair with a colleague for approximately five years. Wife changed the locks to the house two days after husband left. Husband may have been pursuing the emotional victory of a fault based divorce for wife’s cheating.

Husband may also have been pursuing the adultery grounds for the financial benefit. RSA 458:16-a, II provides that a court may divide property unequally when it would be appropriate and equitable to do so after considering one more of the statutory factors. One of the factors reads:  “The fault of either party as specified in RSA 458:7 if said fault caused the breakdown of the marriage and: (1) Caused substantial physical or mental pain and suffering; or  (2) Resulted in substantial economic loss to the marital estate or the injured party.” With the dental practices, marital home and savings and investments on the line, an uneven split make a substantial difference in the outcome.

However, in my experience, most judges are not persuaded to award a significantly higher portion of the property to the “innocent spouse,” even if they can prove that the adultery caused the breakdown of the marriage and substantial economic loss to the marriage or injured spouse. More than a 45/55 split without other contributing factors would be unusual.

The moral of this story is that there must be a careful cost benefit analysis when filing adultery. Is the litigant willing to remain celibate no matter how long the litigation takes? Is there substantial property up for division that would make even a small deviation from 50/50 worthwhile? Is the time, money and celibacy for a finding that the other spouse cheated sensible?